Welcome to Libertas Chambers Leading specialists in Business Crime, Professional Discipline & Asset Recovery

Libertas is a dynamic and progressive chambers, offering a range of specialisms across a national presence.

"Juries warm instantly to the elegant manner in which he puts his case"
Chambers & Partners 2023

Libertas Chambers

A Forward-thinking set of chambers with a national presence

Libertas Chambers boasts an impressive array of experienced barristers in several practice areas.  We took advantage of recent challenges to rethink the model of a chambers based on criminal and regulatory law and set up on a virtual basis.

This enabled us to create a national service for solicitors and clients by having high quality conference suites in major cities. In London we retain premises in the heart of the City.

Our members provide a high-quality service with access to modern facilities throughout the country.

Read more about us

Areas of Practice & Expertise

Our carefully selected and highly skilled collection of experts provide a national and international service to all Libertas clients. Providing you with a first-class advocacy and advisory service across the following areas (and many more).

If you would like to discuss an alternative area of law please contact our clerking team who will provide you with immediate advice and support.

Business Crime

Our barristers have established national and international reputations for their expertise, experience and confidence in Fraud, Financial Services and Business Crime and Compliance – they are consistently ranked as leaders in the field. We advise and represent individuals and entities in relation to financial, regulatory, and fraud investigations in the UK, and overseas. Our clients include financial institutions and corporations, as well as: politicians entrepreneurs company directors and chief executives chartered accountants lawyers IFAs and medical and other professionals We therefore have accumulated experience dealing with the Financial Conduct Authority, Serious Fraud Office, National Crime Agency, HMRC, National Trading Standards, FACT, as well as other investigating and prosecuting bodies. International Business Crime Many of our cases have an international dimension and we are accordingly experienced dealing with overseas authorities including the US Department of Justice, the Securities and Exchange Commission and EU, Indian and Australian authorities. Practitioners specialise in trans-jurisdictional terrorist financing, proscribed wildlife trading, and export control violations. Members of our team have previously worked in the banking and commercial sectors and within their regulatory regimes. Others have had advisory and disciplinary roles regulating the accounting (FRC, ACCA, CIMA) and medical (GMC) sectors.  Some of us prosecute for these agencies as well as defending, and advise on and conduct internal investigations, or act as disclosure counsel. We understand how regulators and prosecution authorities work. Practitioners lecture and advise on corporate responsibility for human rights. We are often involved in an advisory role at the start of regulatory or criminal investigations. Our experience, attention to detail and dedication to our clients assists them in responding appropriately with the object of avoiding prosecution. When proceedings are commenced, we work to ensure that our clients receive the best advice and representation and, most importantly, a fair hearing. Business Crime Conduct Our work covers a wide range of conduct, recently including: Bribery and corruption, including European government officials Cartel Offending Commercial property fraud Corporate compliance with human rights obligations Environmental protection, including carbon credit and land fraud, wildlife trading and international illegal logging EU, National and Devolved Government grant scheme frauds Export Control violations Fraud and cheating in the sports sector (cricket, rugby, horse-racing) Fraudulent trading Insider trading, market manipulation and abuse Insolvency and bankruptcy offending Intellectual property theft Investment (boiler-room) fraud and Ponzi mis-selling Money laundering, restraint, confiscation and asset forfeiture Pension mis-selling and liberation frauds Professional discipline Tax Evasion SPV’s inc. film and insurance schemes MTIC & carousel fraud PAYE, payroll and C.I.S. frauds Duty diversions Terrorist financing Trading Standards prosecutions in clothing, energy switching and ticketing sectors Web-site ghosting and internet advance-fee frauds Whistle-blowing and deferred prosecution agreements We advise and represent well-known corporate clients and individuals in sensitive situations with discretion as well as vigour. Please call our Clerking team on 020 7036 0200 to discuss any particular requirements you may have.

Criminal Defence

Libertas Chambers brings together some of the country’s leading criminal defence specialists. Exceptional juniors and renowned Queens Counsel provide quality representation from the Supreme Court, through the Crown Courts across London and the Circuits and in the Magistrates Court. Members of Libertas Chambers also regularly appear in quasi-criminal jurisdictions where their experience in the criminal courts provides a cutting edge service in regulatory and professional disciplinary proceedings. Chambers accept instructions in both publicly and privately funded work and members provide specialist and strategic advice at all stages of a criminal case, from pre-charge investigation through to trial and appeal. Members of Chambers have appeared in some of the most high-profile criminal cases of recent times, including Operation Elveden (selling stories about Prince William and Prince Harry to The Sun), R v H and C [2004] 2 AC 134 (leading case on disclosure), R v Jogee [2016] UKSC 8 (clarifying an error in the law in accessorial liability) and R v Lewis [2017] EWCA Crim 1734 on the approach to joint principalship. Areas Of Criminal Defence Expertise Our members are regularly instructed in the following key areas of criminal defence practice: Appellate Homicide Corporate manslaughter Terrorism Drug trafficking Serious and organised crime, including corruption and bribery International crime Human trafficking Modern Slavery Fraud Cyber crime Robbery Serious assaults Kidnaping Serious sexual offences Environmental health offences Trading standards prosecutions RSPCA prosecutions Our criminal defence barristers offer expert advice to a wide range of external authorities and regularly provide training and lectures on current topics to other members of the legal profession, experts and those who work within the wider criminal justice system.

Regulatory Law

Our members have substantial experience defending individuals and companies in regulatory law matters before professional tribunals or the First-tier Tribunal (General Regulatory Chamber) and above. What distinguishes us from other regulatory barristers specialising in regulatory work is that clients will benefit from our skills and experience as criminal advocates. WHAT IS REGULATORY LAW? Many professions are regulated by professional standards boards and codes of conduct. These codes of conduct can be subject to frequent change and are becoming more demanding and sophisticated and, in some cases, opaque. If a regulatory agency believes that offences have taken place, they have broad powers of investigation. They can conduct inspections, seize documents, compel suspects to answer questions, conduct interviews under caution, serve statutory notices, and take enforcement action, including prosecution. If you need help, our regulatory law barristers can provide legal support and representation. REGULATORY LAW OUR BARRISTERS SPECIALISE IN Our members specialise in many areas of regulatory law, including: Professional Discipline Regulatory Prosecutions We can assist with regulatory bodies, including: – The Financial Services Authority – The Health and Safety Executive – Food Standards Agency – The Department for Business, Innovation and Skills – Environment Agency – HM Revenue & Customs WHY CHOOSE OUR REGULATORY BARRISTERS? Contentious regulatory law work often requires a robust defence, strategic advice and preparation, and skilful cross-examination of witnesses. The lack of hard-fought trial experience in some regulatory practitioners means that the witnesses may not be put under the degree of sustained pressure in cross-examination that the client is entitled to and expects. We believe that any individual or corporate entity facing a serious regulatory law accusation is entitled to the same robust defence as a defendant in a criminal case. The consequence of a false regulatory accusation can be just as damaging and life-changing as a false accusation of a criminal offence. Professionals can be vulnerable to malicious complaints. The only way to tackle these successfully is to use the skills honed in the criminal courts to uncover false accusations. We understand that these cases often cross over between criminal, civil, regulatory and disciplinary proceedings. We are also very aware of both the commercial and emotional impact these cases can have on clients and have a lot of experience supporting our clients through the challenges. We are also well-versed in working with insurers, unions and defence organisations. The regulatory law team includes trained mediators and members with experience working within the City and in-house with regulators. Contact Our Regulatory Law Barristers If you would like to speak with a member of our team, there are plenty of ways to contact Libertas Chambers. Our clerks will be only too happy to recommend the most appropriate barrister or combination of barristers for each individual case.

Civil Litigation

There can often be a very thin line between conduct which is criminal in nature or which amounts to commercial fraud only. The correct advice and selecting the right remedy can make all the difference. Some cases are best left to be prosecuted in criminal courts, where the offender faces the prospect of penal consequences. In other cases, seeking remedies in a commercial or a civil court may be more expedient for you to recoup your losses. And then, there are cases where you may want to explore both possibilities simultaneously. Types of Civil Litigation Civil litigation can encompass a broad range of disputes that will directly enact a number of legal matters. A civil litigator will therefore tend to specialise in a specific practice area. Some of the most common types of civil litigation include: disputes and laws that encompass landlords and tenants environmental law products liability intellectual-property disputes construction medical malpractice employment and labour issues anti-trust laws real estate worker’s compensation, and education law Our Civil Litigation Barristers At Libertas, we pride ourselves on having barristers who have vast experience in multiple domains. We can advise you on selecting the correct remedy for your situation. We assist you with advice that lets you form an informed view. Our members routinely provide pre-litigation advice that helps you form a comprehensive legal overview of your situation and the possibilities. Contact Libertas Chambers today to discuss representation for any civil litigation matter.

Public Law & Human Rights

Libertas Chambers enjoys a leading reputation at the public law and human rights bar. Our barristers frequently appear in the Administrative Court and Upper Tribunal in judicial review hearings and administrative appeals. We help our clients pursue public law challenges against all public authorities, including government departments, courts and tribunals, coroners, the police, housing authorities, schools and prisons. Judicial Review Judicial Review proceedings enable challenges to decisions made by Courts and Tribunals, by regulators and by bodies whose public functions impact individuals and companies. This jurisdiction is an essential protection of the individual’s rights against administrative irrationality or excess. We have specialist experience seeking Judicial Review in cases flowing from our other practice areas, challenging decisions in criminal and quasi-criminal investigations. Members have acted for claimants seeking to challenge decisions made by the police, the Ministry of Justice, the Home Office, the Crown Prosecution Service, the Criminal Cases Review Commission (CCRC), the Information Commissioner, the Asset Recovery Agency, the Legal Services Commission, the Magistracy, Judges and various Tribunals. These cases have included: challenges to the lawfulness of pre-charge search warrants decisions to prosecute children actions by solicitors resisting Special Procedure search warrants challenges to the legality of the application of the sending procedure by Magistrates Courts preserving the anonymity of young offenders in extreme cases the applicability of the reasonable time requirements in Article 6 to enforcement of Confiscation Proceedings decisions on appellate referral by the CCRC treatment of prisoners and the review of Parole Board decisions. Criminal Trials Within the criminal trial process, our members have expertise at first instance on: domestic appeal and applications in the European Court of Human Rights and the OHCHR challenging a range of human rights violations, as well as the compatibility of primary and secondary legislation with the European Convention for the Protection of Fundamental Human Rights and Freedoms (ECHR) such as the hearsay provisions in CJA 2003, the reverse burden in s.90 Financial Services Act 2012 the Attorney-General’s exercise of the right of nolle prosequi We act nationally and internationally for people whose human rights are in issue in other forums, including actions against the police, extradition, international law, prisoners’ rights, and at Coronial Inquests. Why Choose Our Human Rights Barristers? Libertas Chambers’ members have advised and acted on behalf of individuals, governmental organisations and major NGOs in providing international human rights expertise. Our members provide advice and representation in cases concerning Prison Law, including issues relating to prisoners’ welfare, Parole Board hearings, and the release and recall of prisoners. Coronial Inquests engage the rights of many groups; members have experience representing interested parties, insurers and the families of the deceased. We offer particular expertise where there is a potential engagement of criminal or regulatory proceedings, acting for insurers and their policyholders.

Private Prosecutions

The prosecution of alleged criminals for wrongdoing is generally the domain of the Crown and its specialist agencies. But increasing budgetary constraints on investigating and prosecution agencies mean that many miscreants can avoid being held to account in the Criminal Courts for their actions. Why Private Prosecutions? When State prosecutors decide they cannot or will not prosecute, the law allows private individuals to prosecute allegations of wrongdoing. Initiating a private prosecution puts you in court as the prosecutor, adopting the mantle of the prosecution agency. Who Can Bring A Private Prosecution? A private prosecution can be brought by any individual or company – it is not solely an option for the police, CPS or government agency. In the past, private prosecutions were more common among charitable or public interest bodies. But more recently, section 6(1) has been increasingly used by individuals and commercial entities as an alternative to or alongside civil litigation. Which offences can be privately prosecuted? Subject to certain exceptions, private prosecutions can be brought for a wide range of offences where the CPS have not initiated criminal proceedings, including: Fraud Property disputes Assault Sexual offences Harassment Perverting the course of justice Blackmail Manslaughter/murder Private Prosecution Barristers Private prosecutions are a specialist area of the law. The right to prosecute, and seek punishment of offenders, brings with it the responsibility of ensuring a fair trial and the obligation to conform to all the rules applicable to any prosecuting agency. Those rules are often complex and diffuse. At Libertas Chambers, our barristers are experienced in liaising with potential prosecuting authorities and advising how to assemble the best case for the prosecution, taking the case to court and seeking justice, even where the Crown Prosecution Service or other prosecution agencies cannot or will not act. Importantly, this includes continuing advice on the recovery of compensation and some or all of litigation costs from defendants or Central Funds. We start by helping you assess your evidence, advising you on the right forum in which to litigate and on the merits of your case, then working with the best private prosecution solicitors to put together and finally present your case at trial, ensuring continuity of representation and consistency of approach. Members of chambers can offer advice about the particular issues that arise in private prosecutions, including: the prospects of success, applying for and resisting the issue of a summons, applications to the Director of Public Prosecutions to take over and stop a prosecution, presenting and resisting abuse of process arguments recovery of costs. If you would like to find out more information about private prosecutions, please contact our clerks to arrange an initial consultation to discuss the merits of your case.

International Law

Libertas Chambers can field a range of quality advocates who are able to undertake advisory, consultancy and adversarial work in International Criminal Law including: Genocide Torture Crimes against Humanity War Crimes (including several members who are experienced in military tribunals) Why Choose Our International Law Barristers? Members of Libertas Chambers have significant experience in international criminal law at International Criminal Courts and Tribunals, including appeals in cases concerning genocide, crimes against humanity and joint criminal enterprise in an international context. Members experience extends to issues of universal and extra territorial jurisdiction, transnational human trafficking, statelessness and citizenship stripping. Members of Libertas Chambers are available to advise on issues of complementarity arising in International Criminal Law investigations and the application of domestic criminal law in the context of war crimes, torture and other international crimes, to include where there are overlaps with International Humanitarian Law, Human Rights, Terrorism as an international crime, Extradition and Asset freezing regimes. International Criminal Law Expertise We are particularly proud to have a number of members with expertise in international terrorism law who have acted in the UK and overseas in high profile cases at trial and on appeal. Our members are also experts in extradition law, particularly in the context of multinational financial crime. Members of Libertas Chambers also have recent experience across the Commonwealth and in the Judicial Committee of the Privy Council and have experience in death penalty cases overseas We have members on the lists and the International Criminal Court (ICC) and the Kosovo Specialist Chambers (KSC) in the Hague and who have appeared in the Extraordinary Chambers in the Courts of Cambodia (ECCC)> Members provide teaching and training in a wealth of international criminal law spheres.


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Latest News
Darren Snow appointed to the CIPFA Regulatory Panel The Chartered Institute of Public Finance and Accountancy (CIPFA) is a UK-based international accountancy membership and standard-setting body. Darren has been appointed to sit on their independent regulatory panel which deals with regulatory and disciplinary cases against is members. CIPFA is the professional body regulating public finance professionals. It has 14,000 members working throughout public services, national audit agencies, major accountancy firms, and in other bodies where public money is managed. For further information on CIPFA see their website. Darren’s appointment builds upon his wide experience in professional disciplinary work.  He is a leading specialist defending in professional disciplinary work across a wide range of professions. He has been ranked in the Legal 500 as a leading junior for several years. He combines his defence practice with appointments as chair on police disciplinary tribunals and a wide range of safeguarding and disciplinary panel work for sports regulators. He has also sat on the Bar’s disciplinary panel for several years. For further information on Libertas’s professional disciplinary team and experience please speak to our clerks who will be happy to help you.
Libertas Chambers
James Walker defends in Operation Uvrou James Walker defends in Operation Uvrou, a counter terrorism command investigation at the Central Criminal court for 10 weeks. Instructed by Sarah Housley of Cunninghams Lythgoe Caplin Ltd.   https://www.theguardian.com/uk-news/2023/apr/24/businessman-plotted-to-intimidate-lawyers-with-fake-bombs-jury-hears https://www.standard.co.uk/news/crime/bomb-plot-trial-old-bailey-barristers-jonathan-nuttall-b1076250.html https://www.dailymail.co.uk/news/article-12007167/Lawyers-helped-Britains-FBI-confiscate-1million-targeted-bomb-plot-court-hears.html https://www.mirror.co.uk/news/uk-news/two-barristers-targeted-fake-bomb-29798996 https://www.independent.co.uk/news/uk/crime/nca-old-bailey-national-crime-agency-london-romsey-b2328112.html https://www.thetimes.co.uk/article/jonathan-nuttall-wife-amanda-explosives-barristers-2023-b58pm283b https://www.legalcheek.com/2023/04/3vb-barristers-targeted-in-grays-inn-fake-bomb-plot/
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Swansea Crown Court – Violent Disorder Case Jon Anders – February / March 2023 The defendant was charged with a violent disorder during which three people were stabbed. The stabbings were serious, one of them being regarded as life threatening. Surprisingly no charges reflecting the stabbings were brought but the seriousness of the allegation of violent disorder was elevated as a result. The case was largely based on CCTV evidence. The Prosecution was made aware by the Defence of a significant error in the purported identification of the defendant which was accepted. The defendant was acquitted following a trial lasting 4 weeks. The solicitor in the case was Natalie Miller at Abbey Solicitors in Manchester.   (See media coverage: https://www.independent.co.uk/news/uk/crime/cardiff-incident-violence-south-wales-police-b1759828.html).
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Latest Insights
Sentencing update – Case notes Case notes from Sarah Day and Marie Spenwyn providing an update as to recent key sentencing developments including a significant case affecting imposition of custodial sentences given capacity in prisons, approach to sentencing those who are sentenced when adults offending committed when a child and new sentencing guidelines.   Prison population and sentencing: Summary of recent Statement from the Chairman of the Sentencing Council The Chairman of the Sentencing Council, Lord Justice William Davis, has recently issued a statement in relation to concerns over the high prison population, following the Court of Appeal’s judgment on 3 March 2023 in R v Arie Ali [2023] EWCA Crim 232.  The case of Ali clarifies that when sentencing an offence that crosses the threshold for a short custodial sentence where there continues to be pressure on prison capacity, as there is at present, the courts can take into account the impact of the current prison population levels to determine whether to suspend a sentence or impose a community order as opposed to a short custodial sentence.   Quoting a letter from the Deputy Prime Minister to the Lord Chief Justice in February 2023, the judgment highlights that operating close to prison capacity has consequences for the conditions in which prisoners are held.  Most particularly, they may well be further away from home (affecting the ability for family visits), be in crowded conditions and have reduced access to rehabilitative programmes. Both the case of Ali and the subsequent statement by the Chairman make clear that the high prison population is an additional factor which can be taken into account when deciding whether a short custodial sentence must be imposed immediately or whether it can be suspended.  It is not a factor which requires all short prison sentences to be suspended, as ever, that must be based on all the factors pertinent to the sentencing exercise.  It would appear that the courts will be reliant on the government to communicate when prison conditions have returned to a more normal state. As a final note, during a recent sentencing exercise in front of Lord Justice Edis sitting at Nottingham Crown Court, he indicated that the issue was only in relation to the male prison population.  It is notable, however, that the statement from the Chairman is not limited in that way so it remains to be seen how this will be applied throughout the courts. Sentencing adults for offences committed when a child From the 17th March 2023 R v Ahmed [2023] EWCA Crim 281 is an important judgement in which the Court of Appeal has clarified the approach that must be adopted when sentencing an adult for offences committed as a child.  In this case, the court heard five appeals together, which each concerned sexual offences and in which the question the court sought to resolve was the correct approach to sentencing an adult for an offence committed as a child. Each of the five sentences were reduced by the Court of Appeal. A number of principles for sentencing those who offended as children but are sentenced as adults can be distilled (at paragraph 32): The Court rejected the submission of the respondent that the Sentencing Council’s Overarching Guideline on Sentencing Children and Young People can only be applied where there is “relative temporal proximity”. The Court confirmed that whatever the age of the offender at the time of conviction and sentence, the Overarching Guideline is relevant and must be applied (in accordance with Section 59(1) of the Sentencing Code) unless the court is satisfied it would be contrary to the interests of justice to do so. The court must have regard to the maximum sentence which was available at or shortly after the time of the offending. The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence. If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custodial sentence, then no custodial sentence may be imposed; Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. The Court emphasised that the mere fact that the offender has now attained adulthood is not in itself a good reason. The Court further stated they found it very difficult to think of circumstances in which a good reason could properly be found, and thus respectfully doubted the decision in the case of R v. Forbes and others [2016] EWCA Crim 1388 in this one respect. However, the point was not specifically argued in these appeals and so the Court has indicated that a firm decision about it must therefore await a case in which it is directly raised. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child. The starting points taken as set out in the points above, may not necessarily be the end point of sentence as they may increase or decrease. As the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. This case adds to a line of authorities from the Court of Appeal in cases such as R v Ghafoor [2002] EWCA Crim 1857 which emphasise that those who offend when under 18 should be treated differently from those who offend as adults and reviews them in the light of the overarching sentencing guidelines for children now in place since July 2017.  The Court stated that this is in recognition of the fact that “in general, children are less culpable, and less morally responsible, for their acts than adults” as stated in R v Limon [2022] EWCA Crim 39.  They therefore require a different approach and are not to be treated as if they were “just cut-down versions of adult offenders”.  Of significance is the expression of these principles as applicable not only to cases where the offender has relatively recently crossed the threshold to adulthood, but where an adult is being sentenced – potentially decades later – for offences committed as a child.  It is no doubt therefore that this will be a significant guideline case and of assistance to practitioners facing a sentencing scenario where the offender has either recently crossed the age threshold and must be sentenced as an adult, or whether the offending was historic offending which took place when a child and is of particular application to sexual offences. New guidelines on sentencing for sale of knives to persons under 18 in force Since the 1st April 2023 two new guidelines relating to the sale of knives by individuals and organisations (offences under s141A of the Criminal Justice Act 1988) to those under 18 have been in force.  In circumstances where there had not previously been any guideline in place for these offences (punishable by a fine for organisations but with a maximin of 6 months imprisonment for individuals) the new guidelines are designed to allow for more consistency in the approach to sentencing these offences across the courts.  There is one level of harm recognised the same risk of harm (to individuals and the wider community) is risked in relation to every sale.  The offence is a summary only one in either case. The guideline for organisations includes specifics as to how they implement training and measures to verify age both in person and online.   The sentencing ranges for organisations now provided will likely result in higher fines being imposed.   As stated in the forward to the published response to the consultations these offences are not frequently prosecuted but have the potential for serious consequences.  For offences that concern large quantities of knives of where there is ‘deliberate or reckless marketing of knives to children’ the guidelines would not apply. New guidelines on sentencing child cruelty Also in force from the 1st April 2023 is a guideline that updates those previously in force from 2019 specifically to take account of the change to the maximum sentences resulting from the Police, Crime, Sentencing and Courts Act 2022 applying to offences committed after the 28th June 2022.   There is now a new level of “very high culpability” relating to both causing or allowing the death of a child (now life imprisonment) and causing or allowing serious harm/child cruelty (now 14 years).   Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register
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What’s the law on the Koh I Noor? Discussing the law on restitution, repatriation and reparations, Felicity Gerry KC and Fahrid Chishty have published an article in the prestigious Eastern Eye on centuries of history, how we should approach disputes over cultural heritage and whether they can lay claim to the Koh I Noor diamond? You can read more here (page 12) https://www.easterneye.biz/digital/issue1704/
Libertas Chambers
Prosecuting Cultural Heritage Crimes in Ukraine: A Survey of the Relevant Principles and Provisions With world leaders set to meet in London later this spring, all eyes are on the ICC. As the Investigation into the Situation in Ukraine develops, theorists and practitioners of international law have speculated as to the scope of potential charges against Russian officials. Prevailing discourse has focussed its analysis on a range of traditional atrocity crimes – genocide, war crimes and crimes against humanity – but where do crimes against cultural heritage fit within this matrix? And to what extent can such conduct, if evidentially made out, be prosecuted at the Hague? In this article, Fahrid Chishty deconstructs these critical yet understudied questions. Fahrid has significant experience in the law relating to crimes against art and antiquities, having advised clients on countering transnational trafficking operations and cultural destruction redress. He has previously shared his expertise in relation to the Armenia-Azerbaijan litigation at the ICJ and the ‘blood antiquities’ crisis facing Afghanistan and Pakistan in 2023. On 24 February 2022, the Kremlin declared its ‘special military operation’ in Ukraine. Its objective was purportedly to ‘demilitarise and de-nazify’ President Zelensky’s regime. At the time of writing, the war endures, with no signs of a ceasefire on the horizon. The implications of the conflict for trade, energy and agriculture – on the continent and beyond – have been profound. Yet negligible attention has been paid to the destruction or misappropriation of Ukraine’s cultural heritage in the theatre of operations. With the International Criminal Court (ICC) poised to deliver its preliminary findings vis-à-vis its Investigation into the Situation in Ukraine, the world expects the evidential picture to support the indictment of the Russian chain of command – notwithstanding the fact that key issues relating to immunities and jurisdiction remain unresolved. While criminal charges brought against Moscow’s leadership may be framed in terms of alleged atrocities committed against civilians – principally, mass killing, torture, abduction, arbitrary detention and sexual violence – calls are mounting in some quarters for the Prosecutor’s description of the charges to also enumerate alleged crimes against Ukraine’s cultural heritage. Factual matrix According to UNESCO, 218 cultural sites have been partially or totally destroyed in Ukraine since February: 95 religious buildings, 78 historical buildings, 18 monuments, 17 museums and 10 libraries. Ukrainian officials state that these were intentional, strategic strikes and amount to cultural genocide. Moreover, Russian troops stand accused of having pillaged swathes of cultural artefacts from museums and private residences nationally. According to one allegation, Russian soldiers forcibly removed Ukraine’s prized collection of Scythian jewellery – a series of golden ornaments dating from the bronze-age Steppes – from the Melitopol Museum of Local History. A diadem dating from the rule of Attila the Hun (d. 453 AD) was also allegedly looted. Ukraine’s position is plain: Russia is intent on extinguishing Kiev’s independent cultural identity and expunging its peoples’ historical footprint. The Minister of Culture has called these actions war crimes. On 20 October 2022 a European Parliament Resolution described Russian actions as ‘an attempt to eradicate the identity and culture of a sovereign nation, also through strategic and targeted acts of destruction on cultural heritage sites, constituting a war crime under the 1954 Convention to which both countries are signatories.’ In this context, if the ICC Investigation evidence is inculpatory, can we expect the Russian leadership to face trial for war crimes committed specifically in relation to Ukraine’s cultural heritage? Legal framework The destruction of cultural heritage during times of war is sadly not a new phenomenon. At various junctures in history, international law has penalised the use of violence against buildings, objects or artefacts having cultural or historical importance. The Nuremberg Trials heard evidence relating to Nazi leaders’ confiscation, desecration and destruction of cultural heritage. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 first established a duty on States Parties to respect and safeguard cultural property in times of military hostilities. This article focuses specifically on three war crimes contrary to the Rome Statute 1998. First, Article 8(2)(b)(ix) criminalises the intentional direction of attacks on ‘buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.’ This provision is, prima facie, engaged; Russia is alleged to have intentionally directed attacks against monuments, museums and houses of worship inter alia. Whether it truly bites will turn on the probative value of the evidence. What of venues that are not expressly listed in the provision? Sporting venues, community centres, cemeteries and parks are potential species of cultural heritage that are not adumbrated in Article 8(2)(b)(ix). The second provision, Article 8(2)(b)(ii), provides a solution. A lex generalis provision, Article 8(2)(b)(ii) classifies the intentional direction of attacks against ‘civilian objects’ as also a war crime. A civilian object is defined as object which is not a ‘military objective’, meaning that it does not by its nature, location, purpose, or use, make an effective contribution to military action, and its destruction, capture or neutralisation does not offer a definite military advantage in the circumstances Accordingly, potential cultural heritage sites that are not susceptible to Article 8(2)(b)(ix) may fall within the ambit of Article 8(2)(b)(ii) where it can be proven that there was no effective contribution to military action and its destruction did not offer a definite military advantage. Lastly, Article 8(2)(b)(xvi) criminalises pillaging, defined as the appropriation of certain property without consent for private or personal use. Russian responses On the basis of the above, the Rome Statute plainly provides a basis for bringing charges against Russian officials in relation to crimes against cultural heritage. However, it will be for a Trial Chamber to determine on the evidence whether the offences are made out. As such, it is important to examine potential Russian responses to the charges at trial. First, Russia may plead that Article 8(2)(b)(ix) has no relevance on the basis that Russian officials did not intentionally direct attacks against protected objects. That is to say, Ukrainian cultural heritage sites sustained damage as a result of bilateral military strikes and not unilateral Russian action. Accordingly, the damage inflicted was, on this interpretation, incidental and collateral. While tragic, it may be put that this is not a war crime within the meaning of the provision. Alternatively, the Russia may plead the ‘military objectives’ defence. This would entail accepting that attacks were intentionally directed at Ukrainian cultural heritage sites, but that those attacks were justified on the basis that the sites in question made an effective contribution to military action and their destruction offered a definite military advantage in the circumstances. According to this position, cultural heritage sites were mobilised for war and therefore dispossessed of their status as protected objects at the material time. That is to say, churches, mosques and museums were militarised and repurposed as pseudo-garrisons from which Ukrainian armed forces and insurgents operated. Lastly, in relation to pillaging, Russia may challenge the nature of the alleged appropriation carried out. While the evidence may paint a picture of Russian troops forcibly removing art and antiquities from Ukraine’s museums, the defence may plead that these were necessary safeguarding and protection measures. The relocation of cultural assets in wartime may be a military necessity. As such, it may be asserted that the alleged pillaging was justified and does not constitute a war crime contrary to Article 8(2)(b)(xvi). These lines of defence are, ultimately, speculative and if pleaded, may not be insurmountable. Whether or not the charges will result in the conviction of Russian officials will, of course, be fact-sensitive and dependent on the evidence. However, the very fact that the charges may contain counts relating to war crimes against cultural heritage is a step in the right direction. Litigating the allegations may not only go towards securing justice vis-à-vis the destruction of heritage of humankind in Ukraine – it will also invite critical judicial guidance on important yet understudied issues intersecting international criminal law and cultural protection. Download this article as a PDF here
Fahrid Chishty
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Defence Statements & Openings: Rule 25.9 and being fair and concise LIBERTAS CHAMBERS ONLINE LECTURE 22nd June 2023 at 6pm. A practice is growing of asking Defence Counsel to open 1 or 2 sentences after the prosecution opening in serious cases which may not be in accordance with the Criminal Procedure Rules. Rule 25.9, taken together with the overriding objective allows for a fair and concise rehearsal of the issues raised in the defence statement or alternatively for the jury to be given the defence statement. This webinar discusses the delivery of defence openings / summary of issues, how defence statements can be framed to support a defence opening, and what is the bare minimum for opening defence issues which is fair. Presented by our Dr Felicity Gerry KC and Marie Spenwyn Felicity and Marie have significant experience defending in the most serious of criminal matters including homicide, terrorism and war crimes. Both are co-authors of The Sexual Offences Handbook (3rd Ed forthcoming). They are well versed in taking procedural challenges and taking the best strategic approaches for clients. Register today – https://www.eventbrite.co.uk/e/defence-statements-and-openings-rule-259-and-being-fair-and-concise-tickets-633231280807 To ensure you don’t miss out on future events please register for our newsletter by clicking here.
Libertas Chambers
The Best Way To Develop The Law On Complicity AKA “Joint Enterprise” – Webinar Video We recently held a webinar on The Best Way to Develop the Current Law on Complicity, AKA “Joint Enterprise”. In the wake of the 7th anniversary of the Supreme Court ruling in R v Jogee [2016], Dr Felicity Gerry KC & Professor Matthew Dyson (Corpus Christi College, Oxford) consider the current substantive law of complicity, and where it could be improved. Presented by Dr Felicity Gerry KC and Professor Matthew Dyson Felicity is well known for leading in the UK Supreme Court in R v Jogee and for defending cases involving issues of complicity in homicide, terrorism and international crimes. Matthew was a defence expert in R v Jogee. He made a leading contribution to the correction of the error of law and is widely published in the field. This webinar presents his recent research into how to regulate liability in complicity with greater legitimacy.   To ensure you don’t miss out on future events please register for our newsletter by clicking here.
Libertas Chambers
The Best Way to Develop the Current Law on Complicity, AKA “Joint Enterprise” This webinar has ended. To watch a replay of the webinar, head to our dedicated blog post LIBERTAS CHAMBERS ONLINE LECTURE 23 February 2023 at 6pm. THE BEST WAY TO DEVELOP THE LAW ON COMPLICITY AKA “JOINT ENTERPRISE” As concerns rise about the incarceration of accessories to murder for increasingly long periods of time, this webinar  will consider the current substantive law of complicity, and where it could be improved. The focus is on the physical components of the crime and will suggest there are the tools available in the law already to improve the law, particularly picking out the need for a substantial contribution by the accomplice, and a sufficiently high level of fault. Presented by our Dr Felicity Gerry KC and Professor Matthew Dyson (Corpus Christi College, Oxford): Felicity is well known for leading in the UK Supreme Court in R v Jogee and for defending cases involving issues of complicity in homicide, terrorism and international crimes.  Matthew was a defence expert in R v Jogee. He made a leading contribution to the correction of the error of law and is widely published in the field. This webinar presents his recent research into how to regulate liability in complicity with greater legitimacy. Register today – https://www.eventbrite.co.uk/e/the-best-way-to-develop-the-law-on-complicity-aka-joint-enterprise-tickets-473220534357 To ensure you don’t miss out on future events please register for our newsletter by clicking here.
Libertas Chambers